T.H.B. Chalapathi, J.
1. This Writ Petition has been filed challenging the Co-option of respondent No. 6 Baljit Kaur to the Gram Panchayat, Ran Singh Wala, by a resolution dated March 1, 1993, passed by the Gram panchayat and to declare that the petitioner was deemed to have been elected to the Gram Panchayat, Ran Singh Wala.
2. The elections of Gram Panchayat, Ran Singh Wala, were held on January 18, 1993. Under the provisions of Punjab Gram Panchayat Act, 1952. (hereinafter referred to as the 'Act') in every Gram Panchayat, there shall be at least two women Panches. Out of the total number of Panches, two seats have been reserved for women Panches. In the election, one Gurnam Kaur and the petitioner filed the nominations for being elected as members of the Gram Panchayat. Since Gurnam Kaur obtained 43 votes she had been declared as deemed to have been elected but the petitioner who secured 39 votes, was not declared as deemed to have been elected at the elections. The representation of the petitioner to declare her as deemed to have been elected under Section 6(4) of the Act was not accepted by the Returning Officer. Thereafter the Gram Panchayat by a resolution dated March 1, 1993, Co-opted respondent No. 6 Baljit Kaur as member of the Gram Panchayat. The petitioner has filed this writ petition challenging the co-option of respondent No. 6 as member of the Gram Panchayat and for declaration that she shall be deemed to have been elected as Panch in view of the specific provisions contained in section 6(4) of the Act.
3. Written statement has been filed on behalf of respondents Nos. 5 and 6. According to them, reliance on section 6(4) of the Act has no basis since this Act was repealed by Panchayati Raj Act, 1994. It has also been pleaded in the written statement that there was only one unsuccessful candidate and, therefore, section 6(4) of the Act has no application and that the said provision will apply if there are two or more unsuccessful women candidates at the elections. It is further contended that election petition is the proper remedy and, therefore, the writ petition is not maintainable.
4. Heard the learned counsel for the petitioner. Though the matter has been adjourned thrice, the learned counsel for the respondents was not present and, therefore, I did not have the advantage of hearing his arguments. I perused the record.
5. The only point that arises for consideration in this case is whether, in the elections to the Gram Panchayat, when there are two unsuccessful women candidates, and one of whom was deemed to have been elected, the other unsuccessful candidate can be deemed to have been elected under Section 6(4) of the Act.
6. The preliminary objection taken in the written statement has no merit at all. The elections were held under the Act a January 18, 1993. The Panchayati Raj Act, 1994, can into force with effect from April 21, 1994. Therefore, the Panchayati Raj Act, 1994, cannot have any application to the elections held in 1993, under the provisions of the Punjab Gram Panchayat, Act, 1952. It is be only the provisions of Punjab Gram Panchayat Act, 1952, that will govern the case. Therefore, Section 6(4) of the Act, 1952 will apply to the present case.
7. The other objection taken by respondents Nos. 5 and 6 in their written statement is that the election petition is the only remedy and, therefore, the writ petition is not maintainable. In my view, this objection has no merit. The petitioner is not challenging the election of any of the elected Panches in this writ petition. She is only challenging the resolution passed by the Gram Panchayat on March 1, 1993. Co-opting respondent No. 6 as member of the Gram Panchayat. Therefore, the election petition is not a remedy at all. In this view I am fortified by a decision of this Court in Karam Kaur v. State of Punjab and Ors., (1994-3)108 P.L.R. 21, wherein it has been held that the petitioner could not file election petition against the co-option of respondent No. 6 as the prescribed authority before whom the election petition could be filed could not declare the petitioner as duly elected in that petition. The relief that the petitioner be declared as elected as Panch in view of Section 6(4) of the Act can be granted by this Court under Article 226 of the Constitution. Therefore, the contention that the election petition is the proper remedy for the petitioner has no substance at all.
8. It is contended in the written statement that under Section 6(4) of the Act, there must be two or more unsuccessful women candidates for the application of the said sub-section. I am of the view that matter is no longer res integra. A Division Bench of this Court. In Gurdev Kaur and Anr. v. The Deputy Commissioner, Patiala and Ors., (1993-2)104 P.L.R. 141 the Division Bench of this Court held as follows:-
'In our opinion, therefore, the same interpretation should be given to sub-section (4) of Section 6 of the Act as the intention behind the promulgation of subsection (4) as well as sub-section (4-B) is the same. Learned counsel appearing for the respondents have vehemently urged that the words 'and the number of unsuccessful contesting women candidates is two or more' used in sub-section (4) is indicative of the fact that there is only one unsuccessful woman candidate then the said unsuccessful woman candidate cannot be declared as deemed to have been elected but according to the proviso, the second woman Panch has to be co-opted. In our opinion the above-mentioned words cannot be construed in the manner which has been urged on behalf of the respondents. These words are relatable to a case where there are two or more unsuccessful women candidates meaning thereby that out of them women having the highest number of valid votes should be deemed to have been elected, but by the use of these words it cannot be said that the intention of the Legislature was different than what it was while enacting subsection (4-B) of the Act. In fact sub-section (4-B) was added by the Legislature subsequently which not only clarified what was intended to mean in sub-section (4) of the Act but also gave effect to the interpretation put by this Court in cases (supra). If sub-section (4) of the Act is read as a whole the intention of the Legislature becomes clear that it was intended that if there are two unsuccessful women candidates both will be deemed to have been elected as has been laid down in the case of Scheduled Caste candidates under sub-section (4-B) of the Act.'
Their Lordships also referred to the decisions of this Court in Shrimati Nachhatar Kaur v. State of Punjab and Ors., 1979 PLJ 243, Shrimati Gurmail Kaur v. Director of Panchayats, Punjab, and Ors., 1979 PLJ 572, and Smt. Surinder Kaur v. Director, Panchayats, Punjab and Ors., 1984 PLJ 409. Their Lordships summarised their conclusions in paragraph 17 of the judgment which reads as follows:-
'We consequently hold that (1) in case one woman panch has been elected and there is one unsuccessful contesting woman candidate then the said unsuccessful woman candidate shall be deemed to have been elected as a Panch; (2) if there is no woman candidate who has been elected and the number of unsuccessful woman candidates are two then both the unsuccessful women candidates shall be deemed to have been elected; (3) if there are more than two unsuccessful candidates then the two women candidates who have the highest number of valid votes shall be deemed to have been elected as Panches; (4) if only one woman candidate contests the election and she is unsuccessful then the said woman candidate would be deemed to have been elected and one more would be co-opted under the proviso and (5) if no woman candidate contests the election then both the women candidates have to be co-opted under the proviso.'
It is stated at the bar by the learned counsel for the petitioner that both Gurnam Kaur and Pritam Kaur, the petitioner, secured 43 votes and 39 votes respectively and both of them have not been elected but the Returning Officer declared Gurdev Kaur as deemed to have been elected as Panch of the Gram Panchayat. But at the same time, he did not declare the petitioner who secured the next higher number of votes as deemed to have been elected. The Division Bench in Gurdev Kaur's case (supra) has clearly stated that if there is no woman candidate who has been elected and the number of unsuccessful woman candidates is two then both the unsuccessful women candidates shall be deemed to have been elected. This will apply to the case in hand. Therefore, both Gurnam Kaur and Pritam Kaur should have been declared as deemed to have been elected to the Gram Panchayat as both of them contested the elections and both were unsuccessful. Even assuming for a moment as contended by the respondents Nos. 5 and 6 in their written statement that Gurnam Kaur got elected and there is only one unsuccessful woman candidate, namely, the petitioner, even in such a case, according to the Division Bench decision, she shall be deemed to have been elected as Panch. I am, therefore, of the view that the writ petition deserves to be allowed.
9. I accordingly allow the writ petition and set aside the resolution of the Gram Panchayat dated March 1, 1993, Co-opting Gurnam Kaur as member of the Gram Panchayat and declaring the petitioner as deemed to have been elected as Panch of the Gram Panchayat. However, there will be no order as to costs.